' SALEEM AKHTAR, J.---The above two petitions will be disposed of by this order. Petition Cr.P.No,52- L/1993 filed by Muhammad All and others seeks leave to appeal against their conviction and sentence made by the High Court while petition Cr.P.No, 9-L/1994 challenges the acquittal of five accused and also seeks enhancement of sentence of Muhammad Ali and others.
2. Muhammad Ali, Muhammad Tariq, Muhammad Aslam, Muhammad Tahir, Muhammad Yaqoob, Shahid, Abdul Malik, Muhammad Sadiq Warraich and Muhammad Sadiq Baluch were tried for the murder of Ghulam Abbas deceased, murderous assault on Nazir Ahmed P.W.5 and abduction of Nasir Ahmed P.W. The learned trial Court convicted and sentenced Muhammad All to death and fine under section 302/34, P.P.C. Muhammad Tariq was convicted and sentenced under section 302/34, P.P.C. To life imprisonment and fine while Muhammad Tahir and Muhammad Aslam were convicted and sentenced under section 307/34, P.Q.C. To seven years' R.I. And fine. The remaining accused were acquitted. Out of nine accused, five were acquitted while four were convicted.
Muhammad All and others, petitioners, filed appeal against their conviction and sentence while complainant/petitioner (Cr.P.9-L/94) filed revision for enhancement of sentence of life imprisonment awarded to Muhammad Tariq by the trial Court. He also filed petition for special leave to appeal against the acquittal of five acquitted accused.
3. According to the FIR., about five or six years back, Muhammad Yaqoob, who was dealing. In diesel, oil and fertilizer, had taken loan of Rs,20,000 from Naseer Ahmed, brother of the complainant and had promised to return it after two/three months. Muhammad Yaqoob left the place after winding up his business and did not pay the amount. Naseer Ahmed several times demanded money from Muhammad Yaqoob, but he avoided. Five/six days before the occurrence Muhammad Yaqoob had come to Kadwala and met Ghulam Abbas and Naseer Ahmed, brothers of the complainant, who demanded money from him. During talks Ghulam Abbas, Naseer Ahmed and Muhammad Yaqoob exchanged hot words and also slapped each other. Ultimately Muhammad Yaqoob promised to Naseer Ahmed to return the amount on 24-8-1990 and to pay something more even. On the day of incident (24-8-1990) at about 6-30 a.m., Ghulam Abbas deceased and Nazir Ahmed P.W.5 were sitting outside the Dera on a cot while complainant alongwith Ghulam Mustafa, Wahid Bakhsh P.W.6 was harvesting the cotton crop nearby and Munir Ahmed was standing beside them. Muhammad Yaqoob, Muhammad Tariq and Muhammad Aslam armed with guns, Muhammad All and Muhammad Tahir armed with carbines, Muhammad Shah, Muhammad Sadiq and Abdul Malik armed with Dangs reached the Dera of the complainant in a beige colour Hilux Dala without any registration number. After alighting from the wagon, they went near the deceased Ghulam Abbas and P.W.5 Nazir Ahmed and raised Lalkara. Muhammad All fired with his carbine straight at the chest of Ghulam Abbas. Muhammad Tariq fired two shots with his gun one after the other at Ghulam Abbas which hit on his buttocks and shin etc. Ghulam Abbas fell on the ground and thereafter Muhammad Aslam fired at the head of Nazir Ahmed P.W.S. Muhammad Tahir fired two shots from his carbine continuously one after the other at Nazir Ahmed P.W.5 which hit his shoulder and foot. Likewise description has been given of the firing by all the accused. All the accused caught hold of Naseer Ahmed P.W.3, took him into the wagon pointing guns and carbines and Dangs towards him and escaped. P.Ws.3, 4, 5 and 6 were the eye-witnesses, but they were disbelieved by the High Court and the conviction was based on the petitioners' statement. The statement of Muhammad Ali petitioner is reproduced as follows:-- "On the day of occurrence, I alongwith Tariq, Tahir and Sadiq Blouch proceeded to the place of occurrence for rendition of account as directed by accused Muhammad Yaqoob. On our way Shamas-ud-Din alias Shamla, Shada Shah, Fida Muhammad, Sajjad and Sadiq Matam met us and stopped us and asked as to where we were going. We informed that we were going to- Chak No, 68/DB for the above purpose. They told us that they were proceeding to Chak No, 72/DB situate at a distance of few miles from Chak No, 68/DB in order to meet their relatives and that they would give us company. At that time Shamas-ud-Din and Shada Shah had guns while other were empty- handed. I was having revolver for my protection and for the safety of vehicle to avoid any incident on the way. Accused Tariq, Tahir and Sadiq Blouch and others were empty-handed. On our reaching deceased Abbas served us with Lassi, complainant Naseer Ahmed, Nazir, Bashir and Mustafa were also present there. When the talk about rendition of account started, complainant party asked us to deposit Rs,16,000 and then they would settle the account. At this, I replied that if any amount was due, that shall be paid and that such condition should not be imposed. Sadiq Matam also said that such condition was not proper; which resulted in exchange of hot words followed by abuses and in said process, deceased Abbas and Ghulam Mustafa and Bashir armed with hatchet and Sotis dealt injuries to Sadiq Matam whereas Nazir P.W. Got hold of me. P.W. Naseer Ahmed brought a gun from his house and fired at Shada etc. In the meanwhile, Shada Shah, Fida Muhammad, Shamas-ud-Din alias Shamla, Sajjad, Sadiq Blouch, Tahir and Tariq took shelter in wagon. Shada Shah got his gun from the wagon and fired which hit Ghulam Abbas and caused him injuries in exercise of self-defence. Shamas-udDin brought gun from wagon and fired Nazir Ahmed and injured him in self-defence to get release of me. The complainant party was in fact the aggressor and wanted to kill us. I caused injury with revolver to Nazir Ahmed P.W. In exercise of my right of self-defence. The prosecution version is false and fabricated. The complainant party implicated the present accused falsely and did not name the actual assailants Shada Shah and Sham as-ud-Din alias Shamla and others. The investigation was not conducted by SHO on correct lines and sided with complainant party. The D.S.P. Investigated the case and declared that Muhammad Yaqoob, Aslam, Shahid, Sadiq Jat and Abdul Malik were innocent and the real culprits were said Shada Shah, Shamas-ud-Din and others. He also declared that the complainant party was the aggressor and that injuries were inflicted on deceased and P.W. In exercise of self-defence.
I am innocent."
' Muhammad Tariq, Muhammad Aslam and Muhammad Tahir almost adopted the statement of Muhammad Ali by stating that they are innocent and the case is totally false. They had gone simply for rendition of account, but the complainant party attacked and they have been falsely implicated. The learned Judges while altering the sentence observed as follows:-- "From the material on record it is difficult to determine genesis of the occurrence. Admittedly there was no previous enmity between the parties. It was incumbent on the prosecution to examine Munir Ahmed P.W. (given up), but for reasons best known to them he was not examined. No witness from the vicinity was examined either to prove the motive or the occurrence.. It appears that the occurrence took place at the spur of moment over something which both the parties are trying to suppress. The circumstances show that there was a sudden fight between the parties and resulted in the death of Ghulam Abbas deceased and injuries to P.W.5 Nazir Ahmed and Muhammad Sadiq Matam, absconder co-accused. As regards injuries to Ghulam Abbas deceased, those were attributed to Muhammad All and Muhammad Tariq appellants. Likewise, injuries to Nazir Ahmed (P.W.5) were caused by Muhammad Aslam and Muhammad Tahir appellants. The injuries on Muhammad Sadiq Matam, absconder co-accused, were not explained by the prosecution which stand fortified in our conclusion about the exaggerated number of accused by the fact that the police on the basis of investigation had declared accused Muhammad Yaqoob, Muhammad Sadiq, Abdul Malik, Shahid and Muhammad Aslam as innocent and appellant Muhammad Ali as accused who was armed with revolver. C.W.1 Riazur Rehman Kaloo also stated that during his investigation he had come to know that an altercation had taken place between appellant Muhammad Ali and P.W.4 Bashir Ahmed etc. On payment of Rs,16,000, which resulted in exchange of abuses, and on the basis of investigation accused Muhammad Yaqoob, Muhammad Sadiq, Abdul Malik, Shahid and Muhammad Aslam were declared innocent and placed in column No,2 of the challan.
' For the foregoing reasons we are of the view that there was no premeditation amongst the appellants Muhammad Ali, Muhammad Tariq, Muhammad Tahir and Muhammad Aslam, and the complainant party. These appellants were individually liable for their acts."
4. The learned counsel for the petitioners contended that having disbelieved the eye-witnesses and recovery, the petitioners could not have been convicted merely on their statement under section 342, Cr.P.C. We grant leave to the petitioners in Cr.P.52-L/1993.
5. So far Petition Cr.P.No, 9-L of 1994 for enhancement of sentence of petitioners in Cr.P.52-L/93 and against acquittal of five accused, is concerned, we are not inclined to grant leave so far acquittal of five accused is concerned. They have been acquitted by the trial Court which has been maintained by the learned Judges of the High Court. The evidence has properly been appraised in their cases and conclusions have been drawn reasonably which can be justified legally. So petition to the extent of five acquitted accused is dismissed. However, leave is granted on the question of enhancement of sentence of the c four accused/petitioners in Cr.P.52-L/93 wherein leave has been granted to appraise the evidence.